(Circulated by authority of the
Minister for Immigration and Citizenship,

the Hon Kevin Andrews MP )

amendments to the MIGRATION AMENDMENT (BORDER INTEGRITY) BILL
2006

OUTLINE

1.
The purpose of these amendments to the Migration Amendment
(Border Integrity) Bill 2006 (‘the Bill’) is to
ensure passenger cards containing signatures can continue to be
collected in immigration clearance from persons entering and
departing Australia.

1.
The Bill proposes to amend the Migration Act 1958 to:

·
provide that a special purpose visa may cease at a time specified
by the Minister where the Minister has made a declaration under
subsection 33(9) of the Migration Act that it is undesirable for
that special purpose visa holder, or class of special visa holders,
to travel to and enter or remain in, Australia;

·
enable citizens and selected non-citizens in immigration clearance,
arriving and departing Australia, to have their identity, and their
citizenship status or visa, verified by an automated system instead
of an officer;

·
preserve the current policy intention that the evidence required to
be presented (that is, shown but not for the purposes of
collection) by non-citizens as proof of identity, of a visa that is
in effect, and of lawful status, may include a “personal
identifier” for the purposes of the Migration Act; and

·
enable selected New Zealand citizens arriving in Australia to be
granted a special category visa, in immigration clearance, by an
automated system, instead of an officer.

2.
Certain amendments contained in the Bill will have the unintended
consequence of preventing the collection of passenger cards from
citizens and non-citizens arriving and departing Australia because
they contain signatures. Signatures are defined to be a
‘personal identifier’ for the purposes of the Migration
Act.

3.
Passenger card information is essential for the day-to-day business
of the Department of Immigration and Citizenship and other
government departments and agencies including the Australian
Customs Service, Australian Quarantine and Inspection Service and
the Australian Bureau of Statistics. The signature on the passenger
card represents a declaration by the subject that the information
they have provided on the card is true, correct and complete.

4.
Other amendments contained in the Bill will have the unintended
consequence of making all people ineligible to use an authorised
system because of the way that passenger cards are collected in
practice.

5.
These government amendments preserve and make clear the authority
to collect passenger cards containing signatures. They also
ensure that a person will not become ineligible to use an
authorised system if he or she provides their passenger card to a
clearance officer. That is, the amendments make it clear that
a person may present some of the evidence they are required to
present to an authorised system and some to a clearance officer
rather than it having to be one or the other as the Bill currently
requires.

financial impact
statement

6.
The proposed amendments to the Bill will not have a financial
impact.

2.
Item 7 of Schedule 2 to the Bill inserts a definition of
“clearance authority” that means either “a
clearance officer” or “an authorised
system”. The purpose of this amendment is to ensure
that a person does not have to use the same “clearance
authority” to provide information under paragraph 166(1)(b)
as is used to present evidence under paragraph 166(1)(a).

3.
The amendment also ensures that a person can provide part of the
information that is required under paragraph 166(1)(b) to an
authorised system and the remainder to a clearance officer.
This flexibility is needed because not all authorised systems will
be designed to collect passenger cards which is one type of
information that is required under the Act and Migration
Regulations 1994 (‘the Regulations’).

Amendment
2 Schedule 2, item 9, page 5 (lines 22 and 23)

4.
This amendment amends item 9 of Schedule 2 to the Bill by replacing
the reference to “(other than a personal identifier)”
with “(including the person’s signature, but not any
other personal identifier)” in proposed paragraph
166(1)(b).

5.
Item 9 of the Bill inserts new paragraph 166(1)(b) which provides
the authority to require citizens and non-citizens entering
Australia to provide information required to be given by the
Migration Act or Regulations. However, the Bill further provides
that this information may not include a “personal
identifier”.

6.
A “personal identifier” is defined in subsection 5A(1)
in Part 1 of the Migration Act to include, among other things, a
person’s signature. Passenger cards which are currently
collected and would continue to be collected under the authority of
new paragraph 166(1)(b) will contain signatures (that is, a
‘personal identifier’).

7.
The purpose of this amendment is to ensure that passenger cards
containing signatures can continue to be collected in immigration
clearance from persons entering Australia.

Amendment 3 Schedule 2, item 9, page 6 (lines 6 and 7)

8.
This amendment amends item 9 of Schedule 2 to the Bill by omitting
paragraph 166(2)(b).

9.
Paragraph 166(2)(b) specifies a criterion for using an authorised
system. The effect of paragraph 166(2)(b) is that a person
will only be eligible to use an authorised system if the person
chooses to present their evidence “ and ” provide
their information to an authorised system rather than a clearance
officer.

10.
As there are currently no arrangements proposed to allow a person
to provide their passenger card to an authorised system, proposed
paragraph 166(2)(b) would have the unintended consequence of making
all people ineligible to use an authorised system. This is
because a passenger card is information that is required under the
Act and Regulations and a passenger card will always have to be
provided to a clearance officer rather than an authorised
system. The amendment overcomes this oversight by omitting
proposed paragraph 166(2)(b).

11.
Paragraph 166(2)(b) can safely be omitted because the voluntary
basis for using an authorised system is already made clear by
proposed subsection 166(2) which provides that a person
“may” (not must) use an authorised system to comply
with a requirement in subsection 166(1). The heading to
proposed subsection 166(2) also emphasises that use of an
authorised system is entirely voluntary. Similarly, the
definition of a “clearance authority” to be inserted by
item 7 of Schedule 2 to the Bill also makes clear that a person can
choose whether to use a clearance officer “or” an
authorised system to satisfy the requirements under subsection
166(1).

Amendment
4 Schedule 2, item 9, page 6 (lines 12 and 14)

12.
This amendment amends item 9 of Schedule 2 to the Bill by replacing
the reference to “information (other than a passenger card)
or personal identifiers referred to in subsection (1) of this
section” with “information or personal identifiers
referred to in subsection (1) of this section (other than a
passenger card)” in proposed paragraph 166(2)(c).

13.
Item 9 of the Bill inserts new subsection 166(2) which specifies
which citizens and non-citizens entering Australia are eligible to
use the automated system in order to satisfy the relevant
evidentiary requirements under proposed subsection 166(1). However,
it is unclear whether under proposed subsection 166(2) the
requirement for a citizen or non-citizen to provide a passenger
card (under proposed amended paragraph 166(1)(b)) containing the
person’s signature, would result in that person being
ineligible to use the automated system.

14.
A “personal identifier” is defined in subsection 5A(1)
in Part 1 of the Migration Act to include, among other things, a
person’s signature.

15.
The purpose of this amendment is to ensure that the requirement for
citizens and non-citizens entering Australia to provide a passenger
card with his or her signature on it does not in any way affect his
or her eligibility to use the automated system to satisfy the
requirements under subsection 166(1).

Amendment
5
Schedule 2, item 11, page 7 (line 28)

16.
This amendment amends item 11 of Schedule 2 to the Bill by
replacing the reference to “system” with “an
authorised system”.

17.
The purpose of this amendment is to clarify that the
“authorised system” in proposed paragraph 170(1)(b)
need not necessarily be the same authorised system as is referred
to in proposed paragraph 170(1)(a).

Amendment
6 Schedule 2, item 11, page 7 (lines 28 and 29)

18.
This amendment amends item 11 of Schedule 2 to the Bill by
replacing the reference to “(other than a personal
identifier)” with “(including the person’s
signature, but not any other personal identifier)” in
proposed paragraph 170(1)(b).

19.
Item 11 of the Bill inserts new paragraph 170(1)(b) which provides
the authority to require citizens and non-citizens who travel, or
appear to intend to travel, on an overseas vessel from a port to
another port (in Australia), to provide information required to be
given by the Migration Act or Regulations. However, the Bill
further provides that this information may not include a
“personal identifier”.

20.
A “personal identifier” is defined in subsection 5A(1)
in Part 1 of the Migration Act to include, among other things, a
person’s signature. Passenger cards that would be collected
under the authority of new paragraph 170(1)(b) will contain
signatures (that is, a ‘personal identifier’).

21.
The purpose of this amendment is to ensure that passenger cards
containing signatures can continue to be collected from citizens
and non-citizens who travel, or appear to intend to travel, on an
overseas vessel from a port to another port (in Australia).

23.
Paragraph 170(2AA)(b) specifies a criterion for using an authorised
system. The effect of paragraph 170(2AA)(b) is that a person
will only be eligible to use an authorised system if the person
chooses to present their evidence “ and ” provide
their information to an authorised system rather than a clearance
officer.

24.
As there are currently no arrangements proposed to allow a person
to provide their passenger card to an authorised system, proposed
paragraph 170(2AA)(b) would have the unintended consequence of
making all people ineligible to use an authorised system.
This is because a passenger card is information that is required
under the Act and Regulations and a passenger card will always have
to be provided to a clearance officer rather than an authorised
system. The amendment overcomes this oversight by omitting
proposed paragraph 170(2AA)(b).

25.
Paragraph 170(2AA)(b) can safely be omitted because the voluntary
basis for using an authorised system is already made clear by
proposed subsection 170(2AA) which provides that a person
“may” (not must) use an authorised system to comply
with a requirement in subsection 170(1). The heading to
proposed subsection 170(2AA) also emphasises that use of an
authorised system is entirely voluntary. Similarly,
subsection 170(1) as amended by item 11 of Schedule 2 to the Bill
makes it clear that a person can chose whether to use a clearance
officer “or” an authorised system to satisfy any of the
requirements under subsection 170(1).

Amendment
8 Schedule 2, item 14, page 8 (lines 20 and 21)

26.
This amendment amends item 14 of Schedule 2 to the Bill by
replacing the reference to “information (other than a
passenger card) or personal identifiers referred to in subsection
(1) or (2)” with “information or personal identifiers
referred to in subsection (1) or (2) (other than a passenger
card)” in proposed paragraph 170(2AA)(c).

27.
Item 14 of the Bill inserts new subsection 170(2AA) which specifies
which citizens and non-citizens who travel, or appear to intend to
travel, on an overseas vessel from a port to another port (in
Australia), are eligible to use the automated system in order to
satisfy the relevant evidentiary requirements under proposed
subsection 170(1). However, it is unclear whether under proposed
subsection 170(2AA) the requirement for a citizen or non-citizen to
provide a passenger card (under proposed paragraph 170(1)(b))
containing the person’s signature, would result in that
person being ineligible to use the automated system.

28.
A “personal identifier” is defined in subsection 5A(1)
in Part 1 of the Migration Act to include, among other things, a
person’s signature.

29.
The purpose of this amendment is to ensure that the requirement for
citizens and non-citizens who travel, or appear to intend to
travel, on an overseas vessel from a port to another port (in
Australia), to provide a passenger card with his or her signature
on it does not in any way affect his or her eligibility to use the
automated system to satisfy the requirements under subsection
170(1).

Amendment
9 Schedule 2, item 21, page 10 (line 12)

30.
The amendment amends item 21 of Schedule 2 to the Bill by replacing
the reference to “(other than a personal identifier)”
with “(including the person’s signature, but not any
other personal identifier)” in proposed subsection
175(1)(b).

31.
Item 21 of the Bill inserts new paragraph 175(1)(b) which provides
the authority to require citizens and non-citizens on board, or
about to board, a vessel that is to leave Australia (whether or not
after calling at places in Australia), to provide information
required to be given by the Migration Act or Regulations. However,
the Bill further provides that this information may not include a
“personal identifier”.

32.
A “personal identifier” is defined in subsection 5A(1)
in Part 1 of the Migration Act to include, among other things, a
person’s signature. Passenger cards collected under the above
authority contain signatures (that is, a ‘personal
identifier’).

33.
The purpose of this amendment is to ensure that passenger cards
containing signatures can continue to be collected from citizens
and non-citizens on board, or about to board, a vessel that is to
leave Australia (whether or not after calling at places in
Australia).

35.
Paragraph 175(2AA)(b) specifies a criterion for using an authorised
system. The effect of paragraph 175(2AA)(b) is that a person
will only be eligible to use an authorised system if the person
chooses to present their evidence “ and ” provide
their information to an authorised system rather than a clearance
officer.

36.
As there are currently no proposed arrangements to allow a person
to provide their passenger card to an authorised system, proposed
paragraph 175(2AA)(b) would have the unintended consequence of
making all people ineligible to use an authorised system.
This is because a passenger card is information that is required
under the Act and Regulations and a passenger card will always have
to be provided to a clearance officer rather than an authorised
system. The amendment overcomes this oversight by omitting
proposed paragraph 175(2AA)(b).

37.
Paragraph 175(2AA)(b) can safely be omitted because the voluntary
basis for using an authorised system is already made clear by
proposed subsection 175(2AA) which provides that a person
“may” (not must) use an authorised system to comply
with a requirement in subsection 175(1). The heading to
subsection 175(2AA) also emphasises that use of an authorised
system is entirely voluntary. Similarly, subsection 175(1) of
the Act as amended by item 21 of Schedule 2 to the Bill makes clear
that a person can choose whether to use a clearance officer
“or” an authorised system to satisfy any of the
requirements under subsection 175(1).

38.
This amendment amends item 24 of Schedule 2 to the Bill by
replacing the reference to “information (other than a
passenger card) or personal identifiers referred to in subsection
(1) or (2)” with “information or personal identifiers
referred to in subsection (1) or (2) (other than a passenger
card)” in proposed paragraph 175(2AA)(c).

39.
Item 24 of the Bill inserts new subsection 175(2AA) which specifies
which citizens and non-citizens on board, or about to board, a
vessel that is to leave Australia (whether or not after calling at
places in Australia), are eligible to use the automated system in
order to satisfy the relevant requirements under proposed
subsection 175(1). However, it is unclear whether under proposed
subsection 175(2AA) the requirement for a citizen or non-citizen to
provide a passenger card (under proposed paragraph 175(1)(b))
containing the person’s signature, would result in that
person being ineligible to use the automated system.

40.
A “personal identifier” is defined in subsection 5A(1)
in Part 1 of the Migration Act to include, among other things, a
person’s signature.

41.
The purpose of this amendment is to ensure that the requirement for
citizens and non-citizens on board, or about to board, a vessel
that is to leave Australia (whether or not after calling at places
in Australia) to provide a passenger card with his or her signature
on it does not in any way affect his or her eligibility to use the
automated system to satisfy the evidentiary requirements under
paragraph 170(1)(a).

43.
Subparagraph 32(2)(a)(i) of the Act, as amended by item 1 of
Schedule 3 to the Bill, relevantly provides that a criterion for a
special category visa is that the Minister is satisfied that the
applicant is a non-citizen who is a New Zealand citizen who has
presented to an officer or an authorised system, a New Zealand
passport that is in force.

44.
Proposed paragraph 32(3)(b) clarifies that a person can only
present a New Zealand passport to an authorised system if the
person chooses to present the passport to the system rather than an
officer.

45.
The purpose of this amendment is to provide consistency with
amendments 3, 7 and 10 above. The retention of proposed
paragraph 32(3)(b) (which expressly refers to a person
“choosing” to present their passport to an authorised
system) could otherwise suggest that use of an authorised system is
not a voluntary process in other contexts. This is not the
intention.

46.
Paragraph 32(3)(b) can be safely omitted because the voluntary
basis for presenting a New Zealand passport to an authorised system
is already made clear by proposed subsection 32(3) which provides
that a person “may” (not must) comply with subparagraph
32(2)(a)(i) by presenting a passport to an authorised system.
Similarly, subparagraph 32(2)(a)(i) of the Act as amended by item 1
of Schedule 3 to the Bill also makes clear that a person can choose
whether to present their passport to an officer “or” an
authorised system.